PRENUPTIAL AGREEMENTS IN THE PHILIPPINES

Just wondering what every one's thoughts are on the PRENUPTIAL AGREEMENTS IN THE PHILIPPINES?

Are they worthwhile?

In light of not having a Pre Nup, I have read that assets held outside of the Philippines are not consider in the divisions of assets in a divorce if a divorce takes place: True or False?

Any other thoughts?

Please note, I do understand that it is near on impossible to get a divorce (annulment slightly easier) in the Philippines.  However as we are know the current President in looking at changing the law to make divorce possible.

Not a problem to get a divorce in the Philippines.   You must get married in a mosque and both of you must still be active Muslims when you apply for a divorce.  Not sure what Sharia law says about prenupts.

A foreigner married to a Filipina can divorce. Philippines courts recognize a divorce made abroad. What is forbidden is a divorce between 2 Filipinos who are not muslims

And about the Pre Nup?

mugtech :

Not a problem to get a divorce in the Philippines.   You must get married in a mosque and both of you must still be active Muslims when you apply for a divorce.  Not sure what Sharia law says about prenupts.

Thanks mate and about the Pre Nup?

geolefrench :

A foreigner married to a Filipina can divorce. Philippines courts recognize a divorce made abroad. What is forbidden is a divorce between 2 Filipinos who are not muslims

Thanks mate,

and about the pre nup?

good luck with that  :whistle:

I will say that if I were to formalize a prenuptial contract it would be in my home country. Assets that remain in that country in the bank or otherwise I would assume would be relatively secure under the law and any such contract.

When you bring such an agreement into the Philippines, as a foreigner, to protect assets that you have in the Philippines...well, this is a very different set of issues and risks.

Personally, I would not trust any such agreement to protect any assets that I have outside of my home country (EDIT or even in my home country). But that is just me (and countless Internet tales of woe).

My philosophy is to never bring anything out of my country that I cannot afford to lose forever.

I found this article since this thread got me thinking about the subject
http://www.thailawforum.com/blog/u-s-pr … -important

it shows a bit of how US courts treat foreign prenups

seems a dangerous and potentially expensive  game where everyone always loses

And the mouth pieces always win.
My friends advised a prenup with my almost 8 years Filipino partner while we resided in Oz, after research mostly not worth the paper they are written on, more likely worse in PH.

Cheers, Steve.

As a family law lawyer in California, I'm familiar with both pre- and post nuptial agreements.  State laws vary widely across the USA and nuptial agreements are a prime example of that syndrome.  Anyone considering such a contract MUST use a local family lawyer and learn of the range of discretion courts have to invalidate sections thereof. It is unlikely that a US prenup would be fully upheld in the Philippines and vice versa. They are often partially invalidated here, even in the state where they originated.  Nuptial agreements are what lawyers call "a trap for the unwary",

Forewarned is forearmed I hope. Be careful out there; it's dangerous and I do it for a living.

Thanks for the above information. 

Yep it appears a pre nup is only relevant to where the assets are held  (same as a Will) - so if the assets are in the Philippines the pre nup works there, if the assets are in Australia then you are subject to the Australian law.

pej1111 :

Thanks for the above information. 

Yep it appears a pre nup is only relevant to where the assets are held  (same as a Will) - so if the assets are in the Philippines the pre nup works there, if the assets are in Australia then you are subject to the Australian law.

Not sure how that works pej. As said my experiences were in Oz and the more my friends badgered me to do a pre nup the more I resisted, I did talk to my solicitor about this but felt he was bias with regards to the real law and really only saw the dollars if we went through the motions.
Also with regards to pre nups in Oz the spouse has to also seek advice from an independent solicitor with regards to the conditions, potential mediation etc. more money, lol.

Back to friends badgering me about this and I did understand their concerns but felt that if I went down this path, would show that I didn't trust my better half, which I did and still do and could have possibly left a sour taste in his mouth as well as mine.
If it comes back to bite me then so be it, no different to losing 70% to my ex wife of 22 years, children involved etc. 10 plus years to get back on top as we do.

Family trusts are a good thing if worked properly, things can be held at arms length securely.
Our property in PH is in my better halves name and I simply have a long term lease on the land as well as owning all the buildings and improvements, very legal. Maybe lol.

Cheers, Steve.

single life has fewer legal hassles

Philippine Destiny :

good luck with that  :whistle:

I will say that if I were to formalize a prenuptial contract it would be in my home country. Assets that remain in that country in the bank or otherwise I would assume would be relatively secure under the law and any such contract.

When you bring such an agreement into the Philippines, as a foreigner, to protect assets that you have in the Philippines...well, this is a very different set of issues and risks.

Personally, I would not trust any such agreement to protect any assets that I have outside of my home country (EDIT or even in my home country). But that is just me (and countless Internet tales of woe).

My philosophy is to never bring anything out of my country that I cannot afford to lose forever.

The above raises another issue.  Can a Philippine spouse access an American's assets held in the U.S. during the marriage, after an annulment, after a divorce arising from legal action by the foreign spouse in the foreign spouse's home country?

I believe that the top post assumed that foreign assets were left out of consideration by Philippine courts during proceedings within the Philippines.  However, I'd prefer not to assume the answer here.

Any decent lawyer will include in a contract what law is to be used in case a dispute arises. It's known as the choice of law clause and appears in virtually every contract. Similarly, it is standard for there to be a specific court where any future case may be filed.  Mine name the central district of the Los Angeles County Superior Court for this. It's known as venue selection clause. It's almost malpractice not to do it so as to avoid the kind of issues being discussed throughout this post.

Tsmslf :

Any decent lawyer will include in a contract what law is to be used in case a dispute arises. It's known as the choice of law clause and appears in virtually every contract. Similarly, it is standard for there to be a specific court where any future case may be filed.  Mine name the central district of the Los Angeles County Superior Court for this. It's known as venue selection clause. It's almost malpractice not to do it so as to avoid the kind of issues being discussed throughout this post.

Hi Tsmslf and welcome to the forum and thanks for your contributions to date.

As a practicing lawyer you probably know more on this issue than most so I have to ask your opinion on a few issues that you may help readers here with.
1/  Do these type of contracts hold water or are they pulled to pieces in the courtroom? (As I have read)
2/  What is the longevity of such a contract given time together, incomes earned together/separately, do these need to be updated?
3/  Children either existing (probably already accounted for) or those that come along after the contract with that couple? Pre or Post Nup.
4/  Mediation and counselling for both parties? Are these required in the States and if not in your opinion should they be part of the process?
5/  From your personal experience especially with post nuptials do you think or have you observed changes within their relationship following on?

I'm sure you can ad plenty of things I would never think about and I and I'm sure others would be interested to hear your professional opinion with regards to this topic. Do or don't.
BTW my home country is Australia and probably has different legalities.

Cheers, Steve.

Steve, in general response:

1.  Prenups "hold water" in the US as they are a well recognized form of contract. As I've said above, different states have different rules which they apply to determine prenup validity. In California, we have a 7-day rule which requires 7 days for the non-originating party to obtain counsel and read the agreement prior to signing.  If not followed, the prenup is invalid and unenforceable.  There are other rules as well and each state has some of its own.  If the rules are followed, the prenups are enforced as they are valid contracts.  Courts invalidate them, in whole or in part, on finding non-compliance with regular contract law rules as well.  They don't look at them as different from any other contract law issue. Countries are even more different and I have no idea what any other country's rules are. That's why I recommended local counsel in these matters. I, for example, would engage local counsel were a California client want a prenup before marrying a New York woman. Alone, I'm not competent to do it as I don't know New York law.

2.  Drafters can establish various time limits or conditions to terminate the prenup, say after 10 years of marriage or 5 or more children or whatever.  There is no automatic termination at least in California but there may be in other states.  Updating of any kind may be included if desired.

3.  I don't know what the question is.

4.  Generally not; you should have a lawyer for both parties.  The richer party should pay for the poorer party's lawyer to be safe.  I always advise my clients to do that as it is dangerous and dumb not to.

5.  Post nups tend to be upsetting as most married people figure we're in this together 50/50.  They work but can be destabilizing.  Better to have a prenup. I don't like posts but my job is to make it work not preach.

Tsmslf :

Steve, in general response:

1.  Prenups "hold water" in the US as they are a well recognized form of contract. As I've said above, different states have different rules which they apply to determine prenup validity. In California, we have a 7-day rule which requires 7 days for the non-originating party to obtain counsel and read the agreement prior to signing.  If not followed, the prenup is invalid and unenforceable.  There are other rules as well and each state has some of its own.  If the rules are followed, the prenups are enforced as they are valid contracts.  Courts invalidate them, in whole or in part, on finding non-compliance with regular contract law rules as well.  They don't look at them as different from any other contract law issue. Countries are even more different and I have no idea what any other country's rules are. That's why I recommended local counsel in these matters. I, for example, would engage local counsel were a California client want a prenup before marrying a New York woman. Alone, I'm not competent to do it as I don't know New York law.

2.  Drafters can establish various time limits or conditions to terminate the prenup, say after 10 years of marriage or 5 or more children or whatever.  There is no automatic termination at least in California but there may be in other states.  Updating of any kind may be included if desired.

3.  I don't know what the question is.

4.  Generally not; you should have a lawyer for both parties.  The richer party should pay for the poorer party's lawyer to be safe.  I always advise my clients to do that as it is dangerous and dumb not to.

5.  Post nups tend to be upsetting as most married people figure we're in this together 50/50.  They work but can be destabilizing.  Better to have a prenup. I don't like posts but my job is to make it work not preach.

Thanks for your response, great info for myself and other readers.
A very happy new year to you and yours.

Cheers, Steve.

If you die she gets everything if she dies her relatives get everything you might get a family partner haha her part is covered By Filipino law foreign spouse is on the bottom of the list

Usually such rights may be waived by a knowing agreement. Do you know if that is the case in the RP? People often waive rights in court or through legal process.  If that isn't permitted, then prenups would not be permitted as what they do is waive legal rights to do things as the parties desire. From your post, it would seem that prenups might be more beneficial in the PR.
As an example, California is a community property state meaning that married people share things 50/50 unless they agree to some other arrangement. Those arrangements are pre or post nuptial agreements.  Is that permitted in the RP or not?  Do you know for sure?

If you have this gut feel that your marriage may become bumpy and you may want to quit after all in the long run, better have a pre-nup. And if you're coming from another marriage and you got kids, better to have a pre-nup.

How about pre-nups on both countries drawn, covering specific aspects on both countries so as not to alienate the other on venue selection?

What can you say in two agreements that you can't say in one? Plus the constant argument as to which agreement controls.  I doubt any lawyer would do that. I certainly would not.

Lawyers use what's known as a severability clause to protect clients. It says that any term found illegal may be severed [cut] from the agreement without destroying the rest of the agreement.  It's a standard part of an agreement by any competent counsel.

Tsmslf :

What can you say in two agreements that you can't say in one? Plus the constant argument as to which agreement controls.  I doubt any lawyer would do that. I certainly would not.

Lawyers use what's known as a severability clause to protect clients. It says that any term found illegal may be severed [cut] from the agreement without destroying the rest of the agreement.  It's a standard part of an agreement by any competent counsel.

Let's say you draw up a prenup in some foreign jurisdiction and it is completely legitimate in that jurisdiction. Have US courts ever upheld such agreements or portions thereof that were legal in the foreign jurisdiction, but which would not have been upheld otherwise had they been created in the US jurisdiction?

Tsmslf :

What can you say in two agreements that you can't say in one? Plus the constant argument as to which agreement controls.  I doubt any lawyer would do that. I certainly would not.

Lawyers use what's known as a severability clause to protect clients. It says that any term found illegal may be severed [cut] from the agreement without destroying the rest of the agreement.  It's a standard part of an agreement by any competent counsel.

There is a dichotomy of laws involved of property ownership between the US and the Philippines which could indeed contribute to 2 prenuptial agreement execution. Let´s cite an example:

Mr Stiff from California, 81yrs of age, retired, with heirs from a previous marriage is contemplating on marrying Ms Masarap, 20years of age of Vigan, Ilocos Sur, Philippines. Since he´s investing into a $1million valued property in which to live with his soon to be wife, thoughts of preserving some of the value for his heirs came to mind. The laws of the country doesn´t allow foreigners to own land but can be registered to his soon to be wife and him a lessee to the property. He thought that once he passes away or divorce, whichever comes first and the wife sells the property, he would like half of the proceeds to go to his estate. Now, come the questions:

1. How would you sir protect the rights of Mr Stiff? Wouldn´t a prenuptial agreement drafted by a Filipino lawyer relevant to the laws of the country very pertinent since they are husband and wife although the property is in his wife´s name?

2. If no prenuptial agreement is done in the Philippines, and only one (which is the US) is performed
specifying his rights, how would his heirs protect their interest with the barrage on non-compliance from her Filipino lawyers since the property was on his wife´s name? They can allege that due to duress she was forced to concur and agree of the California venue.

robal

Venue doesn't protect rights. It's mostly for convenience. The way to protect rights is with choice of law clause and then venue really helps as you really don't want an L.A. judge interpreting Philippine law or vice versa.  All venue does is choose the court location for any dispute and nothing else.

Tsmslf :

Venue doesn't protect rights. It's mostly for convenience. The way to protect rights is with choice of law clause and then venue really helps as you really don't want an L.A. judge interpreting Philippine law or vice versa.  All venue does is choose the court location for any dispute and nothing else.

"A choice of law clause or proper law clause is a term of a contract in which the parties specify that any dispute arising under the contract shall be determined in accordance with the law of a particular jurisdiction."
https://en.wikipedia.org/en.wikipedia.org › wiki › Choice_of_law_clause

I understand well what venue is and the choice of law clause. It still boils down to determining one particular jurisdiction and venue in a country and the laws of each country with property ownership are different. I STILL would opt for 2 separate pre-nuptials! Separate property location equals separate prenup agreement appeasing both parties and abiding by the laws of each country.

robal

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